Litigation is often like Chess- good lawyers anticipate the other side’s moves and prepare countermeasures before those moves are made. Good opponents, however, anticipate countermeasures and prepare counter-countermeasure. Magnus Carlsen, the world’s number one ranked Chess player, says he sometimes can think 15 to 20 moves ahead. Time Magazine, December 25, 2009. I haven’t seen this number of counter-counter-counter… arguments in court, which is fortunate for the world’s paper supply.

However, in the class action TCPA setting, defendants have recently used offers of judgment under Rule 68 of the Federal Rules of Civil Procedure to make the claims of an individual plaintiff moot, such that he or she can no longer serve as a representative of the class. The logic behind this argument is that the named plaintiff, his or her claims fully satisfied, is no longer representative of the rest of the class whose claims are unsatisfied. Some courts have agreed with this argument and others have not, but TCPA class action plaintiffs have devised a counter to Rule 68 offers (because if there is no class, there is no fee awarded to those class action attorneys).

What these attorneys have done is file a motion for certification under Federal Rules of Civil Procedure 23 immediately upon filing suit, rather than waiting for discovery to progress and them to discover facts necessary to prove the suitability for class certification under Rule 23. A Rule 68 offer cannot be made once a Rule 23 motion is brought, so the plaintiffs’ attorneys argue their motion should be held in advance pending discovery to prove the facts which they allege are true under Rule 23.

A recent court decision rejects this plaintiff tactic. In Dickerson v. Laboratory Corporation of America, the plaintiff immediately filed a Rule 23 motion with its Complaint alleging a TCPA class of persons who had received allegedly illegal ATDS and prerecorded messages for debt collection.

The court ruled that the class certification was premature. It also ruled, however, that it was disinclined to believe a Rule 68 offer of judgment would make the plaintiff’s claims moot. The news, therefore, is not all good for the defense, but chess matches would not be any fun if each side did not have tactics and counter-tactics at their disposal.

Copilevitz, Lam & Raney, LLC

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